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CONSPIRACIES AGAINST POLITICAL LEADERS: LEGAL IMPLICATIONS AND DEMOCRATIC DISCOURSE

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 ABSTRACT

Conspiracies pestering the political leaders of the country display convoluted challenges to democratic governance, mandating an exhaustive examination of the legal frameworks, judicial precedents, and democratic discourse. In recent years, India has witnessed various prominent cases engaging the speculative conspiracies against the political leaders, accentuating the graveness of the issues. There is an ardent advocacy for the protection of free speech and expression, acknowledging them as an essential backbone of democracy. Scholiasts argue that strict legal measures against the conspiracies may violate these fundamental rights, smothering the conflict and impeding the sturdy public discourse. This article focuses on discerning the legal implications, landmark judicial decision, and wider democratic considerations encompassing such conspiracies. Moreover, this article also sheds light on the phenomenon of conspiracies as a tactical tool used by the political leaders to satisfy their personal interests and conduct the conspiracies to achieve mainly four prime objectives, namely, (i) to smirch the opponents, (ii) to muster the supporters, (iii) to disperse the blame and liability, and (iv) to sabotage the institutions that stand as a threat to their power.  This article particularly focuses on the authoritarian, populist, and conservative leaders, who are more inclined to spreading conspiracies during the periods of the societal tumult.

KEYWORDS – Conspiracy, Political Leaders, Democracy, Legal Framework, Indian Penal Code,1860, Sedition, Hate Speech, Judicial Precedents, Democratic Discourse, Landmark Cases, Freedom of Speech, Public Order, Populist Leaders, Authoritarianism, Democratic Values, Corruption, Electoral Malfeasance, Media, Civil Society, Enforcement Agencies

INTRODUCTION

Conspiracies targeting the political leaders exhibit a substantial challenge to democratic sturdiness and governance worldwide. It is interesting that leaders, who often brandish vital resources, privileges, and power, disseminate conspiracies that typically surfaces the high-power groups as acting with malign intentions. It is more often that the promulgation of the conspiracies is not to challenge the power in wider terms but rather to pester the specific individuals or communities or groups whom they anticipate as a threat to their own authority.
The Landmark Cases like Kedar Nath Singh Vs. State of Bihar (1962)[1] stead fasted the criterion of sedition, avowing the criticism of the Governmental actions, however cogent and valid, does not amount to sedition unless it foments violence or public disorder. However, the line between licit criticism and seditious speech remains muzzy, electrifying the debates on free speech and political contrasts. Judicial Precedents play a vital role in carving out the legal interpretations. In Rangarajan Vs. P. Jagjivan Ram (1989)[2], the Supreme Court of India upheld the right of the citizens to criticize public officials or political leaders, stressing the gravity of sturdy public debates in a democracy. Reciprocally, in Shreya Singhal Vs. Union of India (2015)[3], the court repealed the Section 66A of the Information Technology Act, 2000, which criminalized online speech deemed insolent or ominous. These judgments reflect a fragile balance between protecting the grandeur of the political leaders and upholding the rights of the citizens to be defiant. Even after possessing the legal safety, challenges prevail due to the dynamic nature of the society and the inverse social media amplification in sprawling misinformation and facilitating the dissemination of conspiracies, displaying the unprecedented challenges for governance. Occurrences, like the sprawling of bogus news and concocted images pestering the political leaders accentuate the need for subtle regulatory measures that balance the Freedom of Expression with the accountability to tame misinformation. Conspiracies tend to accumulate after events like a terrorist attack, blasts (Malegaon Blast Case[4]), global pandemics (Covid-19) outbreaks, or a pugnacious presidential election. The political sphere is a prolific ground for the conspiracies, especially entangled with the verbosity of populist leaders who clout the conspiracies for the purposes of strategies.
Furthermore, the politicization of the law enforcement agencies and selective prosecution aggravate apprehension concerning the abuse of legal provisions to reticence conflicts. The high-profile cases, such as the arrests of the activists under the charges of sedition for expressing conflicting views, highlighting the deterring effect on Freedom of Speech and Expression. Incidents like these uprear questions about the independence of the judiciary and the requirement for the judicial inattention to avert the executive thwart. In traversing these intricacies, the discourse in the democracy plays a pivotal role. The civil society, media, as well as the academia furnish as watchdogs, inspecting the Governmental actions and endorsing for clarity and liability. Public awareness campaigns and initiatives fostering media education can empower citizens to distinguish the facts from fiction, alleviating the influence of the misinformation and conspiracies.

DYNAMICS OF CONSPIRACY AGAINST THE POLITICAL LEADERS  

In the ravelled drapery of the Indian politics, the prodigy of the political leader of a party targeting the political leader of a rival party has persisted throughout the history, marked by a quagmire of intra-party rivalries and inter-party rivalries as well. Recent years have seen a escalation in the exertion of various strategies by the political leaders to annihilate or smear their opponents. From character assassination to electoral malfeasance, and in extreme cases, even stooping down to physical harm, the political arena has witnessed a gamut of unethical operations. Historically, cases like the assassination of Indira Gandhi and Rajiv Gandhi, serve as a distressing mnemonic of the fanatical lengths to which the political rivals may go in chase of power. Moreover, the recent incidents of the defection and horse-trading assemblies accentuate the constancy of the conspiracies steered at subverting the Governments.
In 2008, the Pune police convoyed by the Delhi police arrested 16 individuals on accusations of being involved in a Maoist conspiracy to topple the Government and assassinate Prime Minister Narendra Modi as well as foment an insurrection against the ruling BJP. The alleged conspiracy was connected to the Elgaar Parishad Event held in Pune in December,2017 which memorialized a historic Dalit victory, where skirmishes broke out the following day and the police transferred their focus from local provocateurs to a conjectural Maoist plot. The arrested individuals include Human Rights Activists, Lawyers, Writers, and Professors, with no previous records of violence. The NIA dismissed the claims of planted evidence. The case reflects a pattern of quelling under the Modi Government, with the use of anti-terror laws to silence opposition voices and erode democratic norms[5].
The 2G Scam is a integration of three cases, one instituted by the Enforcement Directorate and two cases instituted by the CBI in 2011. A report by the CAG of India disclosed that 2G licenses for mobile networks were sold at cheaper prices rather than carrying free and fair auctions. The prime accusations on A Raja were of assigning airwaves and licenses for cell phone networks in swap of bribes. DMK MP Kanimozhi, as per accusations put on him, played a major role in aiding the 217 Crore bribe from Swan Telecom to Kalaingar TV, the agitprop arm of DMK party. Post the judgment of this case was pronounce, the then PM Manmohan Singh stated that the judgment should be followed but Kanimozhi stated that she refused to target anyone but mended that there was conspiracy and that a lot of people were involved in this. In this case, politicians as well as private officials of the United Progressive Alliance and coalition Government of India were allegedly involved in selling or allotting 122 2G Spectrum Licenses[6].
The recent cases illustrate the depth of the political conspiracies in India. In July, 2019, the coalition Government of Karnataka, incorporating of the Indian National Congress (INC) and the Janata Dal, faced an intense crisis. The 2019 Karnataka political conspiracy stands out as an egregious example, where accusations of horse-trading and bribery emerged, especially the Bharatiya Janata Party, being charged of attempting to contriver the tergiversation to crumple the government, steering to the resignation of numerous legislators and consequent collapse of the State Government. The resignation of these legislators menaced the sturdiness of the coalition Government led by Chief Minister H.D. Kumaraswamy. The crisis escalated into a political stalemate, with profound negotiations and legal battles emanating between the ruling coalition and the opposition. In July, 2019, the trust vote in the Karnataka Legislative Assembly resulted in the collapse of the Kumaraswamy-led Government, paving the way for the BJP to assume power[7].
In March, 2020, Madhya Pradesh tumbled into a political crisis following the resignation of 22 congress MLAs led by Jyotiraditya Scindia. The resignation intimidated the viability of the congress government led by the Chief Minister Kamal Nath, as the ruling party lost its majority in the state assembly. The crisis in Madhya Pradesh was deluged by the internal animosity within the congress party, intensified by alleged desolation of key leaders and dissatisfaction over distribution of power and resources. Jyotiraditya Scindia, a eminent leader, ratted to the BJP, citing discontent with the congress leadership. Imarti Devi, a former minister termed it as a conspiracy[8].
One of the most eminent recent cases of political leader targeting the rival is the 2020 political crisis in Rajasthan. The state witnessed a high-stakes power struggle between the then chief minister, Ashok Gehlot, and his former Deputy, Sachin Pilot. Pilot along with a group of rebel MLAs, was accused of conspiring to crumple the Gehlot-led Government. The crisis involved the allegations of horse-trading, with both the side accusing each other of assaying to lure legislators with offers of money and positions. The situation escalated when Pilot and his supporters were debarred from the party, stating the extremity of political rivalries within the congress party[9].
The Delhi Chief Minister and Aam Aadmi party (AAP) leader Arvind Kejriwal was arrested by the Enforcement Directorate (ED) on 21st March, 2024 evening, on accusations of corruption and money laundering in the articulation and implementation of the Delhi Government’s excise policy for 2021-2022, which was later revoked. The New Delhi Excise Policy, 2021-2022 was introduced in the November,2021 aiming at transmuting the liquor retail landscape in the capital. The objective of the New Delhi Excise Policy, 2021-2022 was to maximize revenues for the state, scuffle the sale of the counterfeit alcohol, and boost the experience of the consumers. However, the policy confronted flaming opposition and accusations of procedural irregularities, ultimately leading to annulment of New Delhi Excise Policy, 2021-2022 on the 1st of August, 2022[10]. In response to these scenarios, the AAP claimed that Amit Shah, the Home Minister of India, in an interview made it clear that Delhi Chief Minister, Arvind Kejriwal was arrested by the ED under a conspiracy. A party leader, Atishi, addressing a press conference alleged that the Home Minister Shah made it clear with a news channel that the ED had the intention to arrest Arvind Kejriwal from the very first time it sent summons to him[11].
The object dragging the politicians to conspire against their rivalries are as divergent as the political landscape itself. Personal aspirations often purvey as a dynamic stimulus, fuelling the implacable chasing of power and authority. The recent cases have unveiled how pushy politicians judiciously adapt conspiracies to arise the hierarchical ladder within their parties, often at the expense of ethical principles and democratic values. Moreover, the protection of ingrained interests serves as a driving force behind political conspiracies.
Apart from internal power struggle, political leaders in India also face menace from discontented citizens who anticipate them as corrupt, incompetent, or disconnected from the grassroots. Public anger and frustration can manifest in various forms, ranging from protests and demonstrations to online trolling and physical attacks. The rise of the social media has provided a platform for ordinary citizens to express their grievances and hold politicians accountable, sometimes stooping to conspiracies to explain perceived injustices.

JUDICIAL PRECEDENTS

Several Landmark Judgments by the Indian Courts have shaped the jurisprudence encircling the conspiracies against the political leaders. The decision of the Supreme Court of India in cases like the Kehar Singh Vs. State (1908) and State of Maharashtra Vs. Som Nath Thapa (1996) have traced the elements of the conspiracy and understood the graveness of such offenses as well as the evidentiary standards necessary for the purpose of prosecution.

  1. Kehar Singh Vs. State (1908)[12]

In the case of Kehar Singh Vs. State (1908), Kehar Singh was convicted for conspiring to murder the then Prime Minister, Indira Gandhi. The Supreme Court of India upheld the conviction of Kehar Singh under Section 120B of the Indian Penal Code, 1860 for criminal conspiracy. The court stressed on the fact that the offense of criminal conspiracy needs the commission of the main offense for its completion. Even if the conspiracy isn’t committed, the mere agreement to commit the crime itself constitutes an offense. This judgment explicated the principle that conspiracy is an independent offense distinguished from the substantive offense pondered by the conspirators. It accentuated the graveness of the conspiracies against the political leaders and asserted the importance of holding the conspirators liable, irrespective of the success or failure in the commission of the crime.

  1. State of Maharashtra Vs. Som Nath Thapa (1996)[13]

The case of State of Maharashtra Vs. Som Nath Thapa (1996), Som Nath Thapa was accused of criminal conspiracy to murder a Member of Parliament, Mr. Mohan Delkar. The Supreme Court of India replicated the principles laid down in the Kehar Singh Vs. State (1908) and further refined the elements of conspiracy. The court stressed on the fact that for proving conspiracy, it is not necessary to establish a formal agreement; even a tacit understanding or a meeting of minds to chase a common unlawful objective would be sufficient. Moreover, the Supreme Court of India illuminated that the offense of conspiracy needs both an agreement as well as an intention to commit an unlawful act. It further stressed on the fact that mere presence at the scene of the crime or association with the main accused does not automatically imply participation in the conspiracy. Instead, the prosecution may establish a meeting of minds amongst the conspirators to achieve the unlawful objective. This judgment provided clarity on the evidentiary necessities for proving an evidentiary requirement for proving conspiracy and reinforced the principles that conspiracies against the political leaders are grave offenses deserving strict punishment.

IMPACT ON DEMOCRATIC DISCOURSE

Conspiracy against the political leaders has a adverse impact on the democratic process, posing a menace to the radical principles of transparency, liability, and informed decision making. In India, the chronicity of conspiracies erodes public trust in political institutions and nurture an atmosphere of fear, suspicion, and segmentation. When citizens anticipate political leaders as targets of conspiracies, they may become discontent with the democratic system, leading to disregard from civic participation. Moreover, the spread of conspiracies can aggravate social divisions and obstruct constructive dialogue, hampering the exchange of ideas and the utterance of comprehensive policies. The corrosion of trust in political leaders and institutions subvert the democratic fabric, exhausting the social contract between the Government and the governed.

ROLE OF PUBLIC DISCOURSE

In skirmishing the conspiracies against the political leaders, promoting a sturdy and inclusive public discourse is incumbent to uphold democratic values and strengthen civic engagement. Civil society organizations, media outlets, and political institutions play a crucial role in assisting transparency, liability, and fact-based dialogue. Civil society initiatives such as fast-checking organizations and advocacy groups can refute false narratives and counter propaganda, empowering citizens with veracious information to make informed decision. Similarly, responsible journalism plays a pivotal role in holding power accountable and scrutinizing the actions of political leaders. By adhering to ethical standards of reporting and providing truth and accountability. Moreover, political institution must uphold democratic norms and principles, ensuring that mechanisms for liability and transparency are sturdy and effective. By promoting open dialogues, respecting dissenting voices, and fostering a culture of mutual respect and understanding, India can strengthen its democratic institution and fortify the tenacity of its democratic discourse against the corrosive effects of conspiracies.

LEGAL IMPLICATIONS

The Legal Frameworks governing the conspiracy against the political leaders in India primarily stem from statutory provisions outlined in the India Penal Code,1860 and the other related laws. These legal frameworks provide the basis for investigating, prosecuting, and punishing conspiracies against the political leaders in India. They aim to uphold the rule of law, protect democratic institutions, and ensure liability for those involved in undermining the democratic process through illegal means.

  1. Indian Penal Code, 1860[14]
    Section 120A – Definition of Criminal Conspiracy –     This section defines the criminal conspiracy as when two or more persons agree to do or cause to be done an illegal act, or an illegal act, or an act which is not illegal by illegal means.
    Section 120B – Punishment for Criminal Conspiracy – This section prescribes punishment for conspiracy, which may include imprisonment and fines. It specifies that individual involved in a conspiracy shall be punished in the same manner as if they had committed the substantive offense themselves.
    Section 124A – Sedition – This section prescribes the punishment for sedition which shall include punishment with imprisonment for life, or with imprisonment which may extend to three years and fine.
  1. Unlawful Activities (Prevention) Act, 1967 (UAPA)[15]
    The UAPA aims to prevent the unlawful activities, including conspiracies against the political leader that threaten the sovereignty and integrity of India.
    Provisions within the UAPA empower the law enforcement agencies to take preventive actions against individuals or organizations engaged in conspiracies aimed at promoting secessionism, insurgency, or terrorism.
  2. Code of Criminal Procedure, 1973[16]
    Section 195(b)(iii) – Prosecution for contempt of lawful of public servants, for offences against public justice and for offences relating to documents given in evidence –     This section deals with the prosecution for offenses related to giving false evidence or fabricating false evidences in judicial proceedings. This section, specifically, empowers the court to take cognizance of such offenses on a complaint made by a public servant concerned, or upon the direction of the court.
    Section 196 – Prosecution for offenses against the state and for criminal conspiracy to commit such offense – This section deals with the prosecution for offenses against the state or public servants. It mandates that no court shall take cognizance of any offenses punishable under Section 172 to 188 of the Indian Penal Code, 1860, except on a complaint made by order of, or under authority from, the State Government or some officer empowered in this behalf by the State Government. This section ensures that offenses against the State or public servants are prosecuted with the requisite authorization from the State Government or competent authority, thereby safeguarding against frivolous or politically motivated prosecutions and ensuring due process in the legal proceedings.
  3. Prevention of Corruption Act,1988[17]
    Section 7 – Offenses relating to public servant being bribed –     This section deals with the offenses of a public servant accepting bribes or gratifications for performing official duties.
    Section 8 – Offenses relating to bribing of a public servant – This section pertains to offering or giving bribes to public servants to influence their actions.
    Section 9 – Offenses relating to bribing a public servant by a commercial organisation – This section addresses the offenses of taking gratification for exercising personal influence with a public servant

CONCLUSION

Conspiracy against political leaders stands as a dismaying menace to the very structure of democracy, requiring an inclusive response extensive of legal, enforcement, and societal dimensions. In a nation like India, where democracy is not just a governance exemplar but a treasured value integral to the individualism of the nation, the prevalence of the conspiracies against political figures undermines the foundational principles of transparency, liability, and civil participation. It is imperative to recognize the multifaceted nature of this challenge and undertake concerted efforts to address it effectively. At its core, the fight against the conspiracy demands a sturdy legal framework that not only defines and punishes such acts but also ensures due process and safeguards against abuse of power. The existing legal provisions, as delineated in statues such as the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988, lays down the foundation for prosecuting conspirators. However, continual review and adaption of these laws to evolving circumstances are essential to keep pace with the ever-changing landscape of political dynamics and technological advancements. Moreover, effective enforcement mechanisms are crucial to translating legal provisions into tangible action. Law enforcement agencies must be equipped with the necessary resources, training, and expertise to investigate and prosecute conspiracies against political leaders swiftly and impartially. Additionally, inter-agency coordination and cooperation are vital to combating the complex web of conspiracies that may span across jurisdiction and involve diverse actors.
The fight against the conspiracy against political leaders is not merely a legal or enforcement challenge but a collective responsibility that transcends institutional boundaries. It requires a concerted effort from all segments of society to safeguard the integrity of democratic institution and principles. By postering a cultural of accountability, transparency, and civic participation, India can effectively mitigate the threats posed by conspiracies, thereby fortifying its democratic edifice for generations to come.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Sruti Sikha Maharana

References:

[1] https://indiankanoon.org/doc/111867/

[2] https://main.sci.gov.in/judgment/judis/7986.pdf

[3] https://indiankanoon.org/doc/110813550/

[4] https://primelegal.in/2024/04/27/the-malegaon-blast-case-unravelling-legal-complexities-in-indias-fight-against-terrorism/

[5] https://www.theguardian.com/world/2021/aug/12/bhima-koregaon-case-india-conspiracy-modi

[6] https://thewire.in/business/2g-accused-acquitted-happened-scam-wasnt

[7] https://www.businesstoday.in/pti-feed/story/bjp-spoke-of-fighting-corruption-and-resorted-to-horse-trading-the-same-day-kumaraswamy-159458-2019-01-19

[8] https://www.ndtv.com/india-news/case-against-madhya-pradesh-congress-chief-jitu-patwari-for-remarks-against-bjp-leader-5581552

[9] https://indianexpress.com/article/india/2020-congress-crisis-gehlot-behind-phone-tap-of-pilot-rebels-claims-ex-aide-of-former-cm-9289290/

[10] https://www.thehindu.com/news/cities/Delhi/watch-what-was-the-new-delhi-excise-policy-all-about-and-why-is-arvind-kejriwal-in-trouble/article67983794.ece

[11] https://www.business-standard.com/politics/ed-intended-to-arrest-cm-kejriwal-from-day-1-says-aap-minister-atishi-124050300498_1.html

[12] https://lawfoyer.in/kehar-singh-and-others-v-state-delhi-administration-2/#:~:text=This%20case%20is%20also%20known,influenced%20Beant%20Singh%20for%20assassination.

[13] https://indiankanoon.org/doc/702724/

[14] https://www.indiacode.nic.in/bitstream/123456789/2263/1/aA1860-45.pdf

[15] https://www.mha.gov.in/sites/default/files/A1967-37.pdf

[16] https://www.indiacode.nic.in/bitstream/123456789/15272/1/the_code_of_criminal_procedure%2C_1973.pdf

[17] https://www.indiacode.nic.in/bitstream/123456789/15302/1/pc_act,_1988.pdf

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The Amendment to the Information Technology Rules is not intended to suppress criticism of the Government: Central Government to the Bombay High Court

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Kunal Kamra vs. State of Maharashtra and Ors.

CORUM: Justices GS Patel and Neela Gokhale

Background of the case

The Information Technology (Intermediary Guidelines and Digital Media Ethics code) amendment rules, 2023, which give the Union government the authority to establish a distinct unit for fact-checking content from digital media and to order its removal if found to be “fake, false, or misleading,” was challenged by comedian Kunal Kamra in a petition filed with the Bombay high court on April 6,2023. The petition challenged the provision on the grounds that it violates Section 79 of the Information Technology Act of 2000 and Articles 14, 19(1)(a), and 19(1)(g) of the Constitution.

As a political satirist, Kamra had asserted that he is compelled to remark on the conduct of the Union government and its employees through the extensive internet and social media platforms in order to spread his work. His capacity to parody politics would be unjustly and excessively restricted if his content were put through an obviously subjective, hand-picked ‘fact check’ by a unit chosen by the Union administration. Therefore, he argues that satire does not lend itself to such a fact-checking effort by its very character. If political comedy were to be examined by the Union government and banned for being “fake, false, or misleading,” it would completely destroy the point of the genre.

Kamra argues that the ambiguity of “in respect of any business” and “reasonable efforts” will result in a chilling effect wherein intermediaries choose to resort to removing any data flagged by the fact-checking unit of the Union government rather than risk losing safe harbour.

Recent Developments in the Case

During the hearing of the petitions contesting changes to the Information Technology Rules of 2023, the Central government informed the Bombay High Court on Tuesday that humour or satire of any kind directed at any governing body is always acceptable as long as it is not offensive or contains obscenity.

The Ministry of Electronics and Information Technology (MeitY)’s Solicitor General, Tushar Mehta, stated that the laws are simply meant to control false news and do not forbid any expression of opinion or criticism against the government.

“Whether we like it or not, any sarcasm or humour directed towards the political establishment has nothing to do with this rule. Unless the humour crosses lines with inappropriate content like abuse or pornography. In any form, humour satire is always welcome. It can’t be forbidden. The administration is solely concerned about the spread of false information and the anonymity of the media. There is not even the slightest chance that any humour or satire would fall under this law.”

The Rules call for the creation of fact-checking units (FCUs), and the petitioners have particularly disputed Rule 3’s authority for FCUs to identify and tag what they deem to be “false or fake online news” in relation to government actions.

Solicitor General outlined how the fundamental rights of five different stakeholders—the internet user, the middleman, the recipient, the government, and the general public—have been taken into account when drafting the Rules. Also made clear that nothing is made illegal or contains any penal provisions in the Rules of 2023. He clarified that the Rules only govern the content and settle disagreements between the content provider and the harmed party.

According to him, the intermediary has three alternatives when FCU flags content: remove it; don’t remove it but add a statement that it has been flagged; or dismiss communication from FCU. The court questioned the need for the change if the government was not going to oblige intermediaries to abide by the FCU’s instructions.

There is a wider public interest on the one hand, and a statute with confusing language on the other. Will it ever allow us to include qualifiers that don’t actually exist? How may “shall” (stated in rule 3) be given a different colour to preserve the safe harbour clause) and how can we read information as fact? Is it legal to interpret clauses in this way? The court posed the query after the session was over. If a person is offended by the message, they might take the middleman to court, which would ultimately determine whether or not the content was true. the change was necessary because it would prevent intermediaries from using the “safe harbour” defence provided by Section 79 of the Information Technology Act to avoid liability.

The recent clarification given by the Central Government to the Bombay High Court is significant reassurance. However, there is still cause for concern due to the rules vagueness, especially in regards to the operation of fact-checking units and the potential chilling impact on intermediaries. Our legal system must strike a fair and just balance as this case progresses, protecting both the freedom to criticise the government and the need to combat the dissemination of false information. This case illustrates the importance of ensuring the appropriate and accountable application of democratic values and the free expression they entail, even in the digital era.

 

 

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Written by: Shivanshi Singh

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Social Media and Freedom of Speech: The Legal Boundaries in India

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Introduction:

Social media platforms have become integral to modern communication, enabling people to express their opinions and engage in public discourse. However, the intersection of social media and freedom of speech raises important legal considerations. This article explores the legal boundaries of free speech on social media platforms, the challenges of content moderation, and the delicate balance between freedom of expression and harmful speech in India.

Freedom of Speech in India:

 India, as a democratic country, values freedom of speech as a fundamental right enshrined in the Constitution. Article 19(1)(a) guarantees the right to freedom of speech and expression, subject to reasonable restrictions for the protection of public order, decency, and morality.

Legal Boundaries on Social Media:

While individuals enjoy the right to express their opinions on social media, certain restrictions exist within the legal framework. The Information Technology Act, 2000, and its subsequent amendments regulate online activities, including social media platforms.

The legal boundaries on social media platforms involve a combination of legislation, regulations, and court interpretations. Here are some key aspects that define the legal boundaries on social media:

  1. Information Technology Act, 2000, and its Amendments:

 The Information Technology Act (IT Act) in India governs various aspects of online activities, including those related to social media. Some key provisions within the IT Act that set the legal boundaries include:

  1. Section 69A: Under this section, the government has the power to block online content that threatens national security, public order, or incites violence. It empowers the government to issue directions to block access to specific content or websites.
  2. Section 79: This section deals with the liability of intermediaries, including social media platforms. It requires intermediaries to observe due diligence and promptly remove or disable access to illegal content upon receiving notice from appropriate authorities.
  3. Section 505(2): Sharing or spreading content that promotes hatred, enmity, or ill-will among religious or social groups is punishable under this section.
  4. Intermediary Guidelines and Digital Media Ethics Code (2021):

 The Intermediary Guidelines and Digital Media Ethics Code were introduced by the government of India in 2021 to regulate social media intermediaries and digital media platforms. These guidelines impose certain obligations on intermediaries, including social media platforms, such as:

  1. Appointment of a Chief Compliance Officer, Grievance Redressal Officer, and Nodal Contact Person.
  2. Implementation of a robust content moderation mechanism, including the removal of specific categories of prohibited content within 36 hours of receiving a court order or notification from appropriate authorities.
  3. Establishment of a grievance redressal mechanism to address user complaints within a specified timeframe.

Court Interpretations and Precedents:

Indian courts have played a significant role in defining the legal boundaries on social media through their interpretations and judgments. Some key principles established by courts include:

  1. Balancing Fundamental Rights: Courts strive to strike a balance between freedom of speech and other fundamental rights such as the right to privacy, reputation, and public order. They often weigh the context, intent, and potential harm caused by online speech while evaluating its legality.
  2. Clarity and Proportionality: Courts emphasize the need for clear and specific legal provisions to restrict online speech. They also stress that restrictions must be proportionate to the harm sought to be prevented and should not be overly broad or vague.
  3. Due Diligence and Content Moderation: Courts have recognized the responsibility of social media platforms to implement effective content moderation mechanisms. Platforms are expected to have clear policies, guidelines, and mechanisms to remove or disable access to illegal or harmful content.

It’s important to note that the legal boundaries on social media platforms are subject to ongoing debates, legislative changes, and judicial interventions. As technology evolves and new challenges emerge, the legal landscape continues to develop and adapt to address the complexities of social media and freedom of speech.

Challenges of Content Moderation:

Content moderation on social media platforms poses several challenges due to the scale, diversity, and constantly evolving nature of user-generated content.

Here are some key challenges faced in content moderation:

  1. Volume and Speed: Social media platforms receive an enormous volume of user-generated content every second. Moderating this massive amount of content within a short time frame is a significant challenge. The speed at which content is shared and spread on social media requires platforms to employ efficient systems and technologies to identify and moderate harmful or objectionable content promptly.
  2. Contextual Nuances: Content moderation becomes challenging due to the need to understand and interpret the contextual nuances of user-generated content. Differentiating between legitimate expression and harmful speech requires considering the specific context, intent, cultural factors, and local sensitivities. The lack of contextual understanding can lead to the misinterpretation or wrongful removal of content.
  3. Varying Legal and Cultural Standards: Social media platforms operate globally, but legal standards and cultural norms differ across jurisdictions. Compliance with diverse legal frameworks and striking the right balance between different cultural sensibilities poses a challenge. Platforms must navigate these variations to ensure consistent and fair content moderation practices.
  4. Automation and Human Review: To cope with the volume of content, platforms often rely on automated systems for content moderation. However, relying solely on automation can lead to errors, false positives, and removal of legitimate content. Striking the right balance between automated systems and human review is crucial to ensure accurate and context-sensitive content moderation.

Recent Legal Developments:

In recent years, India has taken steps to regulate social media platforms and address concerns related to harmful speech. Notable developments include:

  1. Intermediary Guidelines and Digital Media Ethics Code (2021): These guidelines introduce obligations for social media intermediaries, including appointing a Chief Compliance Officer and implementing a grievance redressal mechanism.
  2. Court Decisions: Indian courts have intervened in cases involving freedom of speech on social media platforms, aiming to strike a balance between free expression and protecting individuals from harm.

Balancing Freedom of Expression and Harmful Speech:

Balancing freedom of expression and the need to combat harmful speech is crucial. Striking the right balance involves creating transparent content moderation policies, considering contextual factors while assessing content, and promoting public awareness about responsible digital citizenship.

Here are some key considerations in balancing freedom of expression and harmful speech:

  1. Legal Framework and Restrictions: Freedom of expression is not an absolute right and is subject to reasonable restrictions. Legal frameworks, including national constitutions, human rights conventions, and local laws, define the boundaries within which freedom of expression operates. These restrictions are typically aimed at protecting public order, national security, the rights and reputations of others, and preventing harm. Identifying and enforcing these restrictions effectively is essential to maintain the delicate balance between free expression and preventing harm.
  2. Clear Definitions and Standards: One of the challenges in balancing freedom of expression and harmful speech lies in defining and interpreting what constitutes harmful content. Vague or ambiguous definitions can lead to inconsistencies and subjective decision-making in content moderation. It is crucial to establish clear standards and guidelines that provide clarity on the types of speech that are considered harmful and warrant intervention.
  3. Contextual Evaluation: Context plays a vital role in determining the potential harm caused by speech. The intention behind the speech, its social and cultural context, and the potential impact on individuals or marginalized groups must be carefully considered. Contextual evaluation helps distinguish between legitimate expressions of opinion and speech that incites violence, promotes hate, or targets individuals or communities. Platforms need to develop sophisticated moderation mechanisms that account for contextual factors while assessing and handling content.
  4. Proportionality and Consistency: Ensuring proportionate responses to harmful speech is crucial. The severity of the harm caused, the intent of the speaker, and the potential impact on society should be taken into account when determining appropriate measures. Responses to harmful speech should be consistent and applied uniformly to avoid allegations of bias or unfair treatment.

Finding the right balance between freedom of expression and harmful speech on social media platforms is an ongoing challenge. It requires continuous evaluation, refinement of policies and practices, and an understanding that the digital landscape is constantly evolving. By incorporating legal frameworks, clear definitions and contextual evaluation, a more inclusive and responsible digital environment can be fostered.

Case Laws

Some of the case laws that provide important legal precedents and interpretations in the context of social media and freedom of speech in India include:

  1. Indian National Congress (I) v. Union of India (2014): In this case, the Supreme Court upheld the validity of Section 66A but clarified its interpretation. The court held that online speech could only be restricted if it posed an actual threat to public order or had the potential to incite violence. It emphasized the importance of striking a balance between free speech and maintaining public order.
  2. Kamlesh Vaswani v. Union of India (2015): This case dealt with the issue of blocking websites hosting objectionable content, particularly child pornography. The Supreme Court held that intermediaries like social media platforms have a responsibility to proactively identify and block access to such content to protect children from exploitation.
  3. Faheema Shirin R.K. v. State of Kerala (2019): The Kerala High Court ruled in this case that the freedom of choice and expression of an individual cannot be curtailed merely based on objections raised by others on social media. It emphasized the importance of allowing individuals to express their opinions freely without fear of retaliation or censorship.
  4. Maheshwari v. Union of India (2020): This case involved a plea seeking quashing of an FIR filed against a social media user for allegedly posting objectionable content. The Supreme Court emphasized that social media users cannot be held liable for the mere forwarding or sharing of content unless there is a clear intent to promote hate speech or incite violence.

Conclusion:

Social media platforms have transformed the way people communicate, making freedom of speech a critical issue in the digital age. While India recognizes freedom of speech as a fundamental right, it also imposes reasonable restrictions to protect public order and harmony. The legal boundaries of free speech on social media platforms must be navigated carefully, ensuring a balance between the right to express opinions and the prevention of harmful speech. Ongoing discussions, regulatory developments, and judicial interventions contribute to shaping the legal landscape and finding this delicate balance in India.

References

Case Laws

  1. Shreya Singhal v. Union of India, (2015) 5 SCC 1
  1. Indian National Congress (I) v. Union of India, (2014) 16 SCC 1
  2. Kamlesh Vaswani v. Union of India, (2015) 2 SCC 701
  3. Faheema Shirin R.K. v. State of Kerala, (2019) SCC Online Ker 529
  4. Maheshwari v. Union of India, (2020) SCC Online SC 1223

Websites

Statutes

  • Information Technology Act, 2000

ARTICLE WRITTEN BY AMIT ARAVIND

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